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As Vermont homelessness rises, US Supreme Court ruling gives towns more authority to punish camping

A sign reads "no trespassing" in front of an overgrown lot with makeshift structures and objects
Glenn Russell
/
VTDigger File
The Sears Lane encampment in Burlington on Tuesday, October 26, 2021. The city of Burlington decided to close the encampment and Tuesday was the deadline for residents to leave. 

This story, by Report for America corps member Carly Berlin, was produced through a partnership between VTDigger and Vermont Public.

Last week, the U.S. Supreme Court issued its most significant decision on homelessness in decades: It ruled that municipalities can ban people from sleeping and camping in public places.

The implications for the court’s 6-3 decision are most immediate for the Western U.S.: The ruling undermines lower court decisions in that region that prohibited local governments from penalizing someone for sleeping outdoors if there were no shelter beds available.

But experts anticipate the ruling will influence homelessness policy nationwide, clarifying how local officials can respond to people sleeping outside. And it comes as cities and towns across Vermont grapple with a rise in unsheltered homelessness — and are bracing for more people to lose their shelter over the next few months, as new limits on the state’s safety-net motel voucher program kick in.

“I would expect that in the wake of Friday’s decision, there may be cities or towns that are considering taking another look at some of these policies,” said Harrison Stark, a senior staff attorney at the ACLU of Vermont.

The high court upheld a wide-ranging ban on sleeping and camping in public places like sidewalks, streets, and city parks in the small city of Grants Pass, Oregon, finding that the rules did not defy the Constitution’s prohibition on cruel and unusual punishment. Such blanket bans on sleeping in public spaces appear to be relatively rare in Vermont, according to Stark.

Last fall, the small Northeast Kingdom town of Canaan considered such a ban. At the time there was no homeless shelter available in the region for the general population, although one has since opened in St. Johnsbury. At the time, the ACLU raised concerns about the potential ban’s constitutionality.

The town tabled the ban and hasn’t revisited it since, said town clerk and treasurer Zachary Brown in an interview Tuesday. The town’s select board wanted to wait and see what the Supreme Court decided, Brown added. He said he could not comment on whether he anticipated the select board would take up the ban again in light of the Supreme Court case. Canaan’s select board chair did not respond to a request for comment.

Officials in towns that do have camping bans on the books, like Brattleboro, say they aren’t heavily enforced. Clearing encampments is expensive, said Brattleboro Town Manager John Potter, and town resources are limited. The town has directed attention to encampments that “have gotten out of control, are dangerous,” Potter said – such as areas where it’s difficult for first responders to reach.

“The focus of the town has not been on encampments. The focus of the town has been on how to increase housing in the area so that fewer people are without,” Potter said.

While the court case was underway, the Vermont League of Cities and Towns advised municipalities to be careful about removing people from public spaces unless they had alternative spaces to direct them toward, said Josh Hanford, director of intergovernmental relations for VLCT and former commissioner of the state’s Department of Housing and Community Development.

“That’s just been our general guidance,” Hanford said. “Be cautious, be careful, understand that there is this pending court case.” At the same time, Hanford said, cities and towns could address public health safety concerns surrounding encampments.

That guidance isn’t changing significantly after the Supreme Court’s ruling, Hanford said. Stark, from the ACLU, cautioned that the court’s decision is fairly narrow — and cities and towns should consider other existing safeguards before altering policies on camping.

“It removed one specific check on government's ability to criminalize sleeping outside, but didn't address any of the other myriad protections for the unhoused,” Stark said of the court case. Those other protections include the right to due process, an individual’s rights to their possessions, and their privacy rights, among others, he said.

Municipalities don’t appear to be leaping toward more stringent encampment policies. Dominic Cloud, city manager for St. Albans — which recently broke up an encampment — said the Supreme Court decision has been critiqued “because it authorizes a heavier hand. That’s not our game. Our game is to use a softer hand to the very last resort.”

Rutland City Mayor Mike Doenges said the city’s approach to addressing encampments — which involves deploying police officers to conduct health and welfare checks — is working well, and he doesn’t anticipate the court’s decision will change it. But once the city has more transitional housing set up, he said, it will consider what options the ruling might allow for enforcement.

“What can we do to work and get people from one situation to another?” he said. “How can we get them from camping, perhaps, into a transitional housing campus that will benefit their life and get them back on their feet?”

The court ruling comes as many Vermont municipalities expect to see more unhoused people setting up camp over the next few months. As of July 1, participants in the state’s motel voucher program have their stays limited to 80 days in a year (though stays during the coldest winter months, from December through March, won’t count toward that limit). In tandem with that time limit, the total number of rooms in the motel program will be capped at 1,100 come mid-September. As of late June, there were over 1,400 rooms in use. Meanwhile, shelters across the state are generally full.

“Some households might exit their hotel or motel units on July 1st and preserve their eligible days for colder weather, while others may choose to stay in the unit and use their 80 days this summer,” Miranda Gray, deputy commissioner of the Department for Children and Families’ economic services division, wrote in a letter to municipal leaders last week. “While some households will move into permanent housing, it is also likely that some may camp over the summer.”

Burlington is anticipating seeing more people living unsheltered over the next few months as those new limits take effect, said Sarah Russell, the city’s special assistant to end homelessness and co-chair of the Chittenden County Homeless Alliance.

That’s on top of a stark increase in unsheltered homelessness the county has observed over the last year. Before the first major wave of motel program evictions last June, the county averaged about 60 to 80 people a month self-reporting as unsheltered, Russell said. After the evictions, those numbers skyrocketed, and have remained high. In June, the county tallied 265 people living unsheltered, according to Russell.

Russell does not expect the Supreme Court decision to change Burlington’s policies around encampments – which were shaped, in part, by a 2019 settlement in a case brought by the ACLU. The city bans camping in city parks specifically; when it removes an encampment, it must give its inhabitants adequate notice and store their belongings. Recently, the city moved toward providing basic services at some encampments, like water and portable toilets.

Russell described the city’s approach to encampments as “human-centered,” and said the city’s leadership is opposed to “criminalizing poverty and homelessness.”

“We know that when we do that, it makes it much more difficult for folks to enter into permanent housing, when they’ve had multiple low-level interactions with law enforcement or the criminal justice system,” she said.

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Carly covers housing and infrastructure for Vermont Public and VTDigger and is a corps member with the national journalism nonprofit Report for America.